In 2005, in Gonzales v. Raich, the Supreme Court held that Congress could make it a crime to use medical marijuana even when the drug was home-grown by the user, was not sold, and did not move in interstate commerce. The key precedent was the 1942 case of Wickard v. Filburn, which presented almost the same facts and reached the same conclusion regarding the production of wheat for home use. (Wickard was also the central case cited by Chief Justice John Roberts when he cast the deciding vote to uphold the Affordable Care Act last June. As much as conservative justices might regret Raich, there is no way Roberts would undercut his controversial vote to accommodate potheads.)

But as Mike Ramsey points out, this claim in the parentheses is clearly mistaken:

Look at that parenthetical closely. Surely anyone who’s paying attention knows that (a) Wickard was a commerce clause case; (b) in the health care case (NFIB v. Sebelius) Chief Justice Roberts voted to uphold the Affordable Care Act’s individual mandate under the federal government’s taxing power, not the commerce power; and (c) Roberts joined Justices Scalia, Kennedy, Thomas and Alito to say that Congress did not have power to enact the individual mandate under the commerce clause.

A quick look at Sebelius confirms that, in fact, Roberts (naturally) did not even cite Wickard (much less make it the “central case cited”) in the section of his opinion upholding the Affordable Care Act under the taxing power (Section III.B). Roberts did cite and discuss Wickard in his commerce clause analysis (Section III.A), but that was to distinguish it and to refuse to uphold the Act on the strength of Wickard. In sum, Professor Feldman’s suggestion that Roberts upheld the Affordable Care Act under Wickard is flatly wrong.

Second, Feldman also makes a claim about the movement in the states towards same sex marriage. Feldman states that prior to the November 2012 election, 6 states had legalized same sex marriage, but that had occurred either through legislative action or court decision. Feldman observes, “Because judges are mostly unelected and state legislators are mostly unknown (quick: name yours), it’s plausible that this approval of same- sex marriage did not fully reflect the public’s view.”

But Feldman argues that this past election changed things significantly. Feldman points to three referenda approving same sex marriage in Maryland, Maine, and Washington and one referendum rejecting a provision that would have prohibited same sex marriage in Minnesota. According to Feldman, “these popular votes represent a real shift in public opinion, at least in these relatively progressive states without large contingents of either evangelical or conservative Catholic voters.”

This is important for Feldman because the Supreme Court is likely to be considering two cases implicating a potential constitution right to same sex marriage. And Feldman claims that the Courts may be wary of finding such a right based on what occurred with Roe v. Wade:

Conventional wisdom has it that high-profile, controversial Supreme Court decisions create a backlash against the position they affirm. According to this view, Roe v. Wade is the very model of what not to do: By creating a constitutional right to abortion before the public was ready for it, the decision intensified opposition to abortion and harmed the legitimacy of the court.

But Feldman claims that these referenda distinguish same sex marriage from the Roe situation:

Those who worry about backlash believe that the remedy is for the court not to enact new rights until a national social movement has begun to make those rights broadly accepted in the public mind. For the gay-rights movement, then, these popular referendums approving same-sex marriage could not have come at a better moment. More than any lower-court decision, they let the justices know that the time for same-sex marriage is near. . . . These votes can help show the justices that a gay-rights decision would be hailed as historic and heroic, not reviled and rejected as premature.

Well, maybe. But once again Feldman is not terribly convincing. According to ProChoice.Org, “Between 1967 and 1973 one-third of the states liberalized or repealed their criminal abortion laws.” And Wikipedia states that

In 1967, Colorado became the first state to legalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of the woman. Similar laws were passed in California, Oregon, and North Carolina. In 1970, Hawaii became the first state to legalize abortions on the request of the mother, and New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy. Similar laws were soon passed in Alaska and Washington. [And by] the end of 1972, 13 states had a law similar to that of Colorado.

If these websites are correct (and they conform to what I had thought the law was at that time), the same sex marriage situation is similar – not identical, but similar – to the situation involving abortion back in 1973. It is true the referenda are different and the many of the abortion laws were more limited , but more states were liberalizing their laws back in the period prior to 1973 than now.

Perhaps the Supreme Court should recognize a right to same sex marriage, perhaps not. But Feldman hasn’t made a convincing case for distinguishing the present situation from that of 1973.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Here’s another parallel: No one, to my knowledge, who believes that abortion is homicide, and is the type of evil that should be prohibited by all legitimate government, has ever said, well, shucks, but it’s in the Constitution–right there in the Fourteenth Amendment. Similarly, no one who believes that it just and prudent to reserve the legal status and privileges of marriage to the male-female union–the way it has ALWAYS been–has ever said, well, you know, despite my opinions, the Constitution plausibly compels this result. All those folks, as with Roe, will believe (crazy as it may sound) that their political equality was stolen by judges who made, rather than interpreted, the law.

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